Lingua Franca? How International Law is Translated within Non-Judicial Grievance Mechanisms in the Business and Human Rights Context

The International Law Reading Group (ILRG) is happy to announce a session as part of its Early Career Research Exchange (ECRE) Series, hosting Tomáš Morochovič, who is a Postdoctoral Research Fellow at the University of Edinbugh. Tomáš will be presenting a paper on delegalisation in the context of international law and private governance. The paper will explore how international law, its norms and formal structures, is increasingly invoked in the practice of non-judicial grievance mechanisms operating in the business and human rights field. The ILRG is looking forward to discussing and exchanging ideas on this exciting topic.

 

The full abstract of Tomáš' research could be found below:

International law is under pressure from de-legalisation. The process appears as a retreat from the forms, practices, and institutions of international law, with actors resorting to rules with a lower degree of obligation or even openly challenging the coercive authority of international institutions. While attention has recently centred on more explicit discourses of backlash politics on the one hand, and despair over international law’s overt failures in Gaza and Ukraine on the other, de-legalisation requires our analytical focus as a key and unique dynamic in narratives of crisis of the global legal order. In particular, I suggest that de-legalisation involves a transformation of the normative structures of international law rather than their rejection or replacement. As such, the negative association of the de-legalisation process with pessimistic readings of the trajectory of international law belies the complex way de-legalisation unfolds, as well as the varied and often paradoxical impacts which it has on the reshaping of the global legal order.

To unpack the nuanced ways in which de-legalisation can manifest, in this paper I query how de-legalisation can in fact be prompted by a desire for more law and the increased engagement with legal forms of governance. The paper explores how international law, its norms and formal structures, is increasingly invoked in the practice of non-judicial grievance mechanisms operating in the business and human rights field. On the face of it, such normative ‘translation’ runs counter to the trend of de-legalisation. Yet, by looking at the practice of two such mechanisms – OECD National Contact Points and the Dispute Settlement Facility of the Roundtable for Sustainable Palm Oil – the paper problematises to what extent such a straight-forward reading of the interaction is tenable. The paper conceptualises the engagement of these bodies with international law as a generative process of normative translation that produces hybridisation rather than simple transmission of meaning. Drawing on existing theories of normative transposition between social systems and Latour’s work on translation, the paper tentatively suggests two trajectories along which international law is transformed as it is translated into the practice of private transnational governance actors – one that asserts international law as a common language, a lingua franca, through which different stakeholders can engage, and the other which posits international law as essentially meaningless.